Split Decision from the Ninth Circuit on the Alaska Campaign Finance Challenge

Today, the U.S. Court of Appeals for the Ninth Circuit issued a 2-1 decision in Thompson v. Hebdon, a case in which we filed an amicus brief. The court struck down Alaska’s limit on nonresident political contributions, over an important dissent by the chief judge of the circuit.

Background

The case involved challenges to four different contribution limits in Alaska: (1) the $500 annual limit on an individual contribution to a political candidate, (2) the $500 limit on an individual contribution to a “group,” (3) annual limits on political party contributions to candidates, and (4) the annual aggregate limit on contributions a candidate may accept from nonresidents of Alaska.

Free Speech For People has focused on the nonresident contribution limit. When out-of-state money supplies a large portion of political contributions, it can exert an influence that can undermine democratic self-government. And while not all states may choose to limit political contributions from out-of-state, Alaska has particular reason to be concerned. Compared to many other states, Alaska has fewer legislators for out-of-state interests to target, and more reason for out-of-state interests to target and influence these legislators because of extractive industry interest in Alaska’s natural resources. As a useful comparison, Alaska’s federal elections, which are not subject to a nonresident contribution limit, are heavily dominated by out-of-state money, with more money coming from California and New York than Alaska, and more money coming from Cleveland than from Anchorage.

When the case was in the district court, the state’s lawyers discussed the case with Free Speech For People while developing their brief, and argued that the nonresident contribution limit served two important but distinct state interests: preventing corruption or the appearance of corruption, and protecting democratic self-government. The state’s brief in the lower court made both arguments, and in November 2016, the district court in Anchorage rejected the First Amendment challenges to all four challenged provisions.

The challengers appealed, and we (along with Professor David Fontana) filed an amicus brief in support of Alaska’s nonresident contribution limit. We explained that it was justified by the important state interest in democratic self-government set forth by then-Judge (now Justice) Kavanaugh in a decision (affirmed by the Supreme Court) called Bluman v. Federal Election Commission. The challengers fought back against our argument in their reply brief (see here for Prof. Fontana’s analysis of their reply brief), and oral argument was held on June 11, 2018.

Today’s Decision

Today, a three-judge panel of the Ninth Circuit issued a split decision. On the one hand, all three judges upheld the first three challenged provisions. For those provisions, the decision is generally positive and helpful.

But two of the three judges, over Chief Judge Thomas’s dissent, voted to invalidate Alaska’s limit on out-of-state contributions. The two-judge majority first found that there was inadequate evidence that the nonresident limit served an anti-corruption interest. (They noted that “we do not foreclose the possibility that a state could limit out-of-state contributions in furtherance of an anti-corruption interest” but that the state had failed to show that the limit actually served that interest.) They then proceeded to reject the viability of an important state interest in self-government, and dismissed Bluman as irrelevant.

Chief Judge Thomas concurred in most of the decision, but wrote an important dissent from the majority’s rejection of the nonresident contribution limit. As Chief Judge Thomas explained, the nonresident contribution limit was justified by both an interest in preventing corruption and the interest in self-government. He emphasized the importance of the self-government interest:

States should be able to prevent out-of-state interests from advancing candidates for whom the contributor cannot even vote. Campaign contributions are made primarily to directly influence the outcome of an election rather than to broadcast one’s one political opinion. . . . The nonresident aggregate limit furthers Alaska’s important state interest in protecting state sovereignty in governance. It is “the choice, and right, of the people to be governed by their citizen peers.” When out-of-state interests fund political campaigns, they place an obstacle between the people and their representatives. Alaska must be able to take measures to ensure that its legislators are responsive to the individuals that they represent, not to out-of-state interests.

While Chief Judge Thomas’s views on this issue fell one vote short of a majority, his dissent is still an important recognition of the importance of the self-government interest in general, and its applicability to limits on out-of-state money in particular. And dissenting opinions are important in shaping the law: today’s dissent may become tomorrow’s majority. We at Free Speech For People will build on Chief Judge Thomas’s dissent and continue to press forward in the courts and elsewhere to help defend democratic self-government.

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